Appeal 2006-3390
Application 10/441,783
1 existing zipper slide. Thus, staying within the object of Baroky (i.e.,
2 retrofitting a zipper guard to a zipper slide), it is clear that there is no
3 motivation to provide a single unitary zipper slide and guard, and that the
4 rejections of the claims involve hindsight reasoning. [Br. 10]
5 * * *
6 The obviousness rejection fails to address the fact that the Examiner’s
7 interpretation of Baroky would defeat the purpose of the reference. Within
8 Baroky, it is clearly stated that “the object of the invention to provide a
9 separate, readily attachable guard suitable for retrofitting conventional slide
10 fasteners…”. (Column 1, lines 25-27, emphasis added). Throughout the
11 reference, this object is emphasized, and attachment of the two pieces is the
12 main focus of the reference. [Reply Br. 4]
13
14 The determining of obviousness does not require staying within the object of
15 Baroky. “The question is not whether the combination was obvious to the patentee
16 but whether the combination was obvious to a person with ordinary skill in the
17 art.” KSR Int’l. Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742, 82 USPQ2d 1385, 1397
18 (2007). In making the obviousness determination one “can take account of the
19 inferences and creative steps that a person of ordinary skill in the art would
20 employ.” KSR, 127 S.Ct. at 1741, 82 USPQ2d at 1396. “A person of ordinary
21 skill is also a person of ordinary creativity, not an automaton.” KSR, 127 S.Ct. at
22 1742, 82 USPQ2d at 1397.
23 Baroky’s disclosure of retrofitting conventional zipper sliders with a
24 separate, readily attachable guard to prevent the sliders from picking up or
25 pinching adjacent fabric material (Baroky, col. 1, ll. 13-16, 25-27) would have led
26 one of ordinary skill in the art, through no more than ordinary creativity, to form
27 the slider and guard as one piece in newly-made zippers to avoid the cost and
28 processing step of making and attaching to the slider a separate guard piece. The
29 Examiner has argued that Baroky would have led one of ordinary skill in the art to
30 form the slider and guard as one piece to provide “increased rigidity and strength
5
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